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Tuesday, April 1, 2014

Why Wells?: Exploring the Freedom of Information Act's Ninth Exemption

Yesterday in my administrative law class, we discussed the Freedom of Information Act (FOIA) (5 U.S.C. §552). There is a lot in that act, but for purposes of this post, I am focusing on §552(b), the subsection of the act that exempts certain information from FOIA's requirement that governmental agencies provide information to parties' requests. Specifically, I am focusing on the ninth exemption to FOIA's requirements, which exempts "geological and geophysical information and data, including maps, concerning wells" from FOIA's disclosure requirements.

Other exemptions to FOIA allow the government to retain information that pertains to trade secrets, national security, or private information about agency personnel. Those exemptions make sense to me, but in light of those exemptions, I was led to wonder, "why wells?"

After some searching, I found the Department of Justice Guide to the Freedom of Information Act, which explains the breadth of the subsection nine exemption. In doing so, the guide illustrates the lack of cases that address the exemption.

I decided to look through the few cases that discuss the ninth exemption, and I found that they outlined an evolution in courts' interpretation of FOIA's ninth exemption. I explore this evolution after the jump.

The most helpful case the DOJ cites is Black Hills Alliance v. United States Forest Service, 603 F. Supp. 117 (D.C.S.D. 1984). There, the court explored the ninth exemption to FOIA, quoting a 1966 House of Representatives report:

This category was added after witnesses testified that geological maps based on explorations by private oil companies were not covered by “trade secrets” provisions of present laws. Details of oil and gas findings must be filed with Federal agencies by companies which want to lease Government-owned land. Current regulations of the Bureau of Land Management prohibit disclosure of these details only if the disclosure “would be prejudicial to the Government” (43 CFR, pt. 2). Witnesses contended that disclosure of seismic reports and other exploratory findings of oil companies would give speculators an unfair advantage over the companies which spent millions of dollars in exploration.
In light of the legislative history, the court held that information about geological information that pertained to oil wells was exempted from disclosure requirements.

After looking at the fourth exemption to FOIA which exempts information pertaining to trade secrets and privileged and confidential commercial and financial information, the ninth exemption makes a bit more sense. But my initial impression of the statute was that the exemption pertained to water wells. So does the ninth exemption to FOIA apply to water wells even though the exemption was apparently added with oil wells in mind?

Yes, answers the Southern District of California in Starkey v. United States Department of the Interior, 238 F. Supp. 2d 1188 (S.D. Cal. 2002). There, the court held that information pertaining to "well and water related information" was commercial or financial in nature, and therefore fell under the fourth exemption to FOIA, which exempts information that is commercial or financial in nature and that is confidential and privileged. Since water is a "precious" resource, and since information about water and wells has significant implications for negotiations over water rights, the court held that exemption four applied to this information.

The court went on to hold that private well information also fell under the scope of the ninth exemption, since it was geological information pertaining to wells. Beyond a conclusory statement of this exemption, there was very little analysis on this particular point, and the court's decision seems to have been largely based on the fourth exemption.

In light of the minimal analysis in Starkey over the ninth exemption, I would expect courts to take a narrow approach to water wells. After all, the exemption was enacted with oil wells in mind, and information about water wells might not always implicate commercial or financial concerns like the private wells in Starkey.

But I would be wrong to expect this.

In National Resources Defense Council v. United States Department of Defense, 388 F. Supp. 2d 1086 (C.D. Cal. 2005), the court held that exemption nine applied to public water wells. The court shrugged off the plaintiff's arguments that the law had been enacted with oil wells in mind. I found the court's analysis on this point to be particularly irritating, so I quote it at length:

Plaintiff also contends EPA has improperly withheld maps that show the locations of publicly-owned water wells under Exemption 9. (Opp. at 33). Exemption 9 permits the withholding of "geological or geophysical information and data, including maps, concerning wells." 5 U.S.C. § 552(b)(9). Plaintiff concedes that "literally read, Exemption 9 can be said to cover information relating to publicly-owned water wells." (Opp. at 33). Nonetheless, Plaintiff asserts these withholdings represent a "gross misuse" of Exemption 9, contrary to the "intent of the drafters." (Id.). For support, Plaintiff relies on Black Hills Alliance v. United States Forest Service, 603 F.Supp. 117, 122 (D.S.D.1984), which, according to Plaintiff, "interpreted Exemption 9 to apply only to information concerning privately-held oil and gas wells." (Opp. at 34) (emphasis added). Plaintiff, however, misreads Black Hills, which makes no distinction between public and private wells on government land. Rather, the court in Black Hills concluded that the "exemption applies only to well information of a technical or scientific nature" and "was intended to be limited in scope to scientific or exploratory findings concerning well drillings." 603 F.Supp. at 122.

Plaintiff also relies on the legislative history of Exemption 9, which it contends — despite the provision's plain language — "demonstrates that it was enacted to protect information concerning privately-held oil and gas wells, and nothing more." (Sur-Reply at 24) (citing H.R.Rep. No. 89-1497, 11 (1966)). However, as Defendants point out, the report gives no indication that Congress intended the statutory language to be read as applying only to maps of private wells on public property, but not public wells on public land. (Reply at 28) [page numbers omitted]
The court went on to note that if the statute's text is unambiguous, there is no need to resort to legislative history. I agree that this is a good approach to take, and that the text of the statute does not specify what kind of well it covers. But in distinguishing between public and private wells, the court seems to miss the point of plaintiff's argument which is that the Black Hills court relied on legislative history that was specific to oil rather than water wells.

Overlooking this point, the court extended exemption nine a great deal farther than the Black Hills court had held, and said nothing about the point that FOIA exemptions must be "narrowly construed" in light of the strong interest in disclosing government information. (Department of Air Force v. Rose, 425 U.S. 352, 361 (1976)). While I think that the court's eventual holding was plausible (since the statute does not specify the type of wells the exemption covers), I think that the court should have at least paid some attention to the difference between oil and water wells, and addressed the need for narrow construction of FOIA exemptions.

After going through the limited case treatment of FOIA's ninth exemption, it seems that an initial exemption intended to shield information about oil wells and other oil-related information has been interpreted to cover privately and publicly-owned water wells. In light of the broad wording of the statute, this is not particularly surprising. But since FOIA's ninth exemption seems to have been enacted without consideration of information relating to water wells, I am still a little bit irritated by the cases that apply the exemption to water wells (especially public water wells).

Could courts or legislatures do anything about this? Certainly. FOIA's ninth exemption could be rewritten to pertain to oil wells only. Or the statute could be rewritten to pertain to both oil and water wells, which would at least lead the statute to explicitly cover everything the courts have interpreted it to cover.

An alternate approach to change the ninth exemption's breadth would be for courts to interpret the exemption in line with its legislative history rather than the broad language of the statute and the expansive interpretations that courts have adopted so far. Urging this interpretation would probably not be a winning argument in court, but the argument may gain some strength from the need to narrowly construe FOIA exemptions, and there does not seem to be any case law beyond the district court level that defines the contours of the ninth exemption.


  1. Thank you for this article. I was trying to get my head around the 9th exemption and your article helped with this!

  2. So how could people get information on a well within a USDA forestry campground when they are FIOA exempt? This seems so bizarre.